Can a law firm's employment contract bar a departing lawyer from soliciting or serving the firm's clients for three years after leaving?

Plain-English summary

An attorney signed an employment contract requiring him, on termination, to turn over personal notes and reproductions relating to the firm's business and to refrain for three years from calling upon, servicing, or soliciting clients that had dealt with the firm during his employment. The inquiry asked whether this agreement violates Rule 5.6(a)'s restriction on agreements limiting the right to practice.

The committee quoted Rule 5.6, which bars a lawyer from offering or making a partnership or employment agreement that restricts the right to practice after the relationship ends, except an agreement on retirement benefits, or an agreement restricting practice as part of settling a controversy between private parties. The agreement here was neither a retirement-benefits agreement nor part of a settlement, so the committee concluded it violates Rule 5.6(a) by restricting the lawyer's right to practice after termination.

The committee added that, to the extent the agreement lets the firm prevent the attorney from doing work for clients who want him, it would appear void as contrary to public policy, because it deprives clients of the right to counsel of their choice, citing Corti v. Fleisher.

Currency note

This opinion was issued in 1991, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rule 5.6, while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a law firm bar a departing lawyer from soliciting its clients for a set period?

A: The opinion concluded such a clause violates Rule 5.6(a), which bars employment agreements that restrict a lawyer's right to practice after leaving, outside the retirement-benefits and settlement exceptions.

Q: Does it matter that the restriction lasts only three years?

A: The opinion did not treat the time limit as saving the clause; it concluded the restriction itself violates Rule 5.6(a).

Q: Why is the clause also a public-policy problem?

A: The opinion concluded that, to the extent it stops the lawyer from working for clients who want him, it deprives clients of counsel of their choice and would appear void as against public policy, citing Corti v. Fleisher.

Background and rules framework

The opinion applied Rule 5.6(a) (no partnership or employment agreement restricting the right to practice after termination, outside retirement benefits or settlement of a controversy) to a post-employment non-solicitation clause, reinforced by the public-policy rule that clients are entitled to counsel of their choice (Model Rule 5.6).

Citations and references

Rules of Professional Conduct:

• Model Rule 5.6 (restrictions on the right to practice) / Illinois Rule 5.6(a)

Cases:

• Corti v. Fleisher, 93 Ill. App. 3d 517, 417 N.E.2d 764 (1st Dist. 1981), restriction depriving clients of chosen counsel void as against public policy.

See also

• ABA Formal Op. 06-444: Restrictive Covenants and Retirement Benefits
• ISBA Ethics Op. 12-14: Duties of a Departing Law Firm Associate
• CA COPRAC Op. 2020-201: Departing Lawyer Duties

Source

• Landing page: https://www.isba.org/ethics/opinions/9112